If you are a homeowner, you likely have a long “to do” list for maintaining your house and surrounding property. Whether it is cutting the grass, cleaning the gutters, or painting, many people don’t have the time to stay on top of everything – let alone the big ticket or safety items!
Tree maintenance or inspecting dead trees on the property aren’t often top of mind, unless homeowners get solicitations from arborists or property maintenance companies. But even then, your neighbors will often conclude that they can take care of the tree after it falls down.
Are you responsible if a tree on your property falls and injures someone on the property?
The answer usually is “yes” if the homeowner was negligent, though the answer may vary by jurisdiction. There is a distinct lack of case law or a statute on this subject. The common law of Virginia likely applies.
Property owners owe visitors a duty to make their property reasonably safe. But whether someone is a foreseeable plaintiff (someone who could sue for being injured on the premises) depends upon their status as a visitor.
Trespassers
A trespasser is defined as “one who unlawfully enters the land of another.” The legal definition is similar to the day-to-day definition in that it describes a person who enters someone else’s land without the owner’s permission. Generally speaking, a property owner has no duty to warn trespassers of dead trees in the vicinity or that a dead tree may fall on them.
Licensee
A licensee is defined as a person “who enters a property for his own convenience or benefit with the knowledge and consent, express or implied, of the owner.”
Licensees include:
- Social guests
- Hunters
- Delivery drivers
- Anyone on property who is not a trespasser
As a general rule, the owner only has a duty to warn the licensee of dead trees or trees that may fall if the owner has knowledge or notice. In the absence of knowledge, there is no duty to warn and thus no liability.
Invitee
An invitee is an individual to whom the landowner or occupier has extended an invitation, and the visitor enters pursuant to that invitation. A visitor is considered an invitee if the premises is open to the public, and the visitor enters for the purpose of which the premises are open.
Examples of invitees:
- Birdwatchers at a botanical garden
- Churchgoers
- Families visiting a public beach
The owner or occupant of the premises owes a duty to invitees to use ordinary care to maintain the premises in a reasonable, safe condition and to warn invitees of hidden dangers. A typical homeowner is not likely to have invitees unless they are running some sort of farmer’s market or garage sale on their property. Even then, if during the course of their shopping the plaintiff wanders into the homeowner’s woods (which are not part of or near the farmers market on the premises), the plaintiff could then be considered a trespasser to which no legal duty is owed.
So how does this translate to a typical homeowner who has dead trees on their property? If the homeowner knew that the tree was dead and could potentially fall and injure someone on their property, they would probably be responsible for injuries or damage that the tree caused.
How to know if your tree is dead or dying
The legal obstacle for the injured person lies in proving that the homeowner knew that the tree was dead and presented a fall risk. Ordinarily, it is difficult to know the health of a tree unless it has been dead a long time, with obvious signs of decay or rot such as fungus growth, woodpecker nesting, or bark deterioration with vertical splitting.
However, if the tree had dropped dead branches prior to the occasion when the plaintiff was injured, this could be used to prove that the homeowner knew that the tree was dead.
There are exceptions that may prevent a homeowner from being liable for an injury when a tree falls. If the fall was caused by an “act of God” such as a storm or high wind, it would most likely eliminate the homeowner’s liability. Unless of course, the injured party could prove that the tree was dead and that the homeowner was on notice that wind could take the tree down.
What if I was not on the homeowner’s property, but was injured by a dead tree that fell from that property?
According to common law, a landowner owes no duty to those outside the land with respect to natural conditions existing on the land, regardless of their dangerous condition.
The Supreme Court of Virginia ruled in Cline v. Dunlora that unless the property owner did some affirmative act, such as negligently trimming the tree, the property owner owes no duty to protect highway travelers from the danger of a dead tree falling on the highway. Stated another way, there is no legal duty to maintain any natural condition (such as trees, shrubs, rocks, etc.) on land adjacent to a roadway). See also: McDiard Assocs. V. Yevdokimov
What if the tree falls from the homeowner’s property and damages the adjacent property?
Fancher v. Fagella establishes the rule in Virginia for these cases. This case involved a dispute between two adjoining landowners – one of whom had a large, sweet gum tree growing next to the property line. The growth caused damage to the retaining wall, home foundation, and drain pipes of his neighbor. The Virginia Supreme Court examined a variety of different liability regimes, and subsequently adopted the “Hawaii approach.” This states that “encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property.” If so, the owner of the tree or plant may be held responsible for harm caused to adjoining property.
While Fancher v. Fagella makes it clear that a homeowner whose plant or trees damages a neighbor’s property is responsible for damage to the neighbor’s property, the case does not seem to establish a rule addressing responsibility if the plant or tree causes injury to the neighbor’s person or body. There is a notable lack of case law on the subject.
If my neighbor’s tree branches encroach on my property, can I remove the branches or the tree?
Even if you’re worried that a neighbor’s tree may damage you or your property, you cannot cut down the tree. Virginia Code § 18.2-140 makes it a crime to take down a tree, whatever its condition, if the tree is on some one else’s property.
However, if a branch (or roots) from a neighbor’s tree encroach on your property, it is okay to cut them.
As you can see, whether an injured person can bring a claim depends on several variables, including where the plaintiff was when he or she was injured and why the plaintiff was on the property.
An attorney skilled in the nuances of such cases can listen to your unique story and see if you’re able to recover for injuries you’ve sustained. Call the compassionate premises liability lawyers at Allen & Allen today for a free case evaluation, at 866-388-1307.
